Mr. Al G. Rives: Mr. Chief Justice, all the members of the Court, may it please Your Honors.

The question presented by this case is whether a citizen of the State of Alabama, who is an employee of a common carrier engaged in interstate commerce by railroad is deprived of his remedy of a suit for personal injuries under the Federal Employers' Liability Act because such railroad is owned by the State of Alabama and which state invokes a claim of immunity from such a suit.

The case is brought here for this question to be reviewed by this Court on a writ of certiorari that was issued to the Court of Appeals for the Fifth Circuit that held the State of Alabama was constitutionally immune from such suit and had not waived such immunity.

The facts in the case are these, the State of Alabama is authorized by its constitutional amendments and by legislative enactment, to own and operate the Terminal Railway of the State Docks Department.

The legislative enactment provides that the Terminal Railway is under a duty to negotiate working agreements with its employees in accordance with the provisions of the Railway Labor Act.

And, that the State of Alabama through the State Docks Commission, will operate this Terminal Railway as though it were an ordinary common carrier.

It operates an interchange yard where it exchanges cars with the Northern National Railroad Company, the Gulf Mobile & Ohio Railroad Company, the Southern Railway Company and the Alabama, Tennessee and Northern Railroad Company.

It has extensive truckage that it uses to serve a number of private industries.

It moves freight for hire and profit.

It is a common carrier by a railroad engaged in interstate commerce.

It makes reports to the Interstate Commerce Commission concerning injuries suffered by its employees.

It keeps its accounting records so as to comply with the regulations of the Interstate Commerce Commission.

In an agreement between the Terminal Railway and the railroad brotherhood, they provide as follows, employees must not make any statement either or a writ concerning any acts of claim or sue, in which the -- the company is or maybe involved to any person other than authorized representative of the Railway without permission except in cases arising under the Federal Employers' Liability Act, otherwise known as an Act relating to the liability of common carriers by railroad to their employees in certain cases.

So it would be seen from the agreement or contract between the Railway and the railroad brotherhood.

They provided for or at least contemplated suits against the Terminal Railway.

And they provided for or at least contemplated cases under the Federal Employers' Liability Act.

The petitioners are employees of the Terminal Railway.

They were injured in line of duty while engaged in interstate commerce.

And they brought suit under the Federal Employers' Liability Act in the United States District Court at Mobile, Alabama.

The State of Alabama moved to dismiss the suits of the petitioners claiming immunity from such suits and claiming that they could not be maintained in the United States District Court.

Petitioners contend that the State of Alabama by accepting the Commerce Clause of the United States Constitution, delegated to the Congress the power to regulate commerce between the several states, and thereby surrender its rights of sovereignty on that power that was granted to the Congress.

Now, Chief Justice Marshall in Gibbons versus Ogden had this to say about the power to regulate such commerce, we are now arrived at the enquiry.

What is this power?

It is the power to regulate.

That is to prescribe the rule by which commerce is to be governed.

This power is complete, in itself, and maybe exercised to its utmost extent.

The Congress, in the exercise of this power granted to the -- to it by the states under the Commerce Clause of the United States Constitution, enacted the Federal Employers' Liability Act which provides that every common carrier by railroad engaged in interstate commerce shall be liable to such -- to any employee of such carrier while engaged in such commerce for any injury resorting in whole or in part from the negligence of the officers, agents or employees of the carrier or by reason of any defect or insufficiency due to the negligence of the carrier and its cars, engines, track, roadbed works or other equipment.

And, also provided that the right thereunder -- for the right thereunder suit, could be maintained in the United States District Court.

The Congress, also in the exercise of this power granted to it under the Commerce Clause, adopted the Federal Safety Appliance Act which applies to any common carrier engaged to interstate commerce by railroad, and also enacted the Railway Labor Act, which applies to any carrier by railroad subject to the Interstate Commerce Act.

Now, this Court in United States versus California, held that a state owned railroad in the State of California, were subject to the Federal Safety Appliance Act.

And this Court, in California versus Taylor, held that that same state owned railroad in the State of California were subject to the Railway Labor Act.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Al G. Rives: That's true Your Honor, it -- it -- yes sir.

That is -- that -- that's the reason.

This -- this is the first time this Court has been called upon to decide whether the state owned railroad is subject to the Federal Employers' Liability Act.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Al G. Rives: Yes sir, it is this.

Yes sir.

Now, I decide to quote this Court from -- from United States versus California as follows."

The sovereign power of the states is necessarily diminished to the extent of the grants of power to the Government -- to the Federal Government in the Constitution.

California, by engaging in interstate commerce by rail, has subjected itself to the commerce power and is liable for a violation of the Safety Appliance Act as are other carriers.

No convincing reason is advanced why interstate commerce and persons and property concerned in it should not receive protection of the Act, whenever a state as well as a privately owned carrier brings itself within the sweep of the statute.

Or why its all embracing language should not be deemed to afford that protection.

You further state that since the section, which as we have held imposes the liability upon the state and privately owned carriers alike, also provides the remedy and designates the manner and the Court in which the remedy is to be pursued, we think, the jurisdictional provisions are as applicable to suits brought to enforce the liability of states as to those against the privately owned carriers and that the District Court had jurisdiction.

Now, this Court, in California versus Taylor, said the fact that the Congress shows to phrase the coverage of the Act, which will involve the Railway Labor Act, in all embracing terms, indicates that state railroads were included within it.

Now, the Jones Act and the Federal Employers' Liability Act to have like nature and in Petty versus Tennessee, the Missouri Bridge Commission, the Court said we -- finally, we can find no more reason for accepting state or by a state corporation from employer as used in the Jones Act then we could for accepting them from the Federal Safety Appliance Act in U.S. versus California or the Railway Labor Act in California versus Taylor.

The California District Court of Appeals, in Maurice versus State held that this state owned railroad in California is subject to the Federal Employers' Liability Act.

It said, it would be a strange situation indeed if the State could be held subject to the Federal Safety Appliance Act and liable for a violation thereof, and yet could not be sued without its expressed consent.

The state by engaging in interstate commerce and thereby subjecting itself to the Act, must be held to have waived any right it may have had arising out of the general rule that a sovereign state may not be sued without its consent.

Now, Judge Brown of the Court of Appeals in the case at bar, in his special concurring opinion, had this to say, case at bar, "What this presents, is the anomaly of a clear, legal right without any effectual means of enforcement."

And what the petitioners are here for is to ask this Court to say that not only do these petitioners have a clear legal right, under the Federal Employers' Liability Act but the -- that petitioners also have a clear legal remedy to enforce that clear legal right."

Chief Justice Earl Warren: Mr. Darby.

Argument of Willis C. Darby

Mr. Willis C. Darby: Mr. Chief Justice may it please the Court.

First we submit that Congress, when it enacted the Federal Employer's Liability Act in 1908, did not intend at that time to subject the state to sue.

We based our contention on several things.

One is the legislative history.

The purpose of the Federal Employer's Liability Act is clear from that history.

It was to change the common law liability of master and servant for those engaged in the railroad industry.

Certainly, there was no common law liability in 1908 on behalf of a state owned and operated railroad towards its employer -- employees.

Justice Potter Stewart: When was a -- when did Alabama built or required this railroad?

Mr. Willis C. Darby: In 1927.

Its when --

Justice Potter Stewart: Almost 20 years (Voice Overlap) --

Mr. Willis C. Darby: -- the railroad was started.

Actually, some of the bond issues that came in the early 20s, in the 20s, in 1927 is the first year that it had any operations whatsoever and that substantially was when the railroad was built.

Justice Potter Stewart: So, the -- the state built it some -- almost 20 years after the enactment of the railway -- railroad (Voice Overlap) --

Mr. Willis C. Darby: That's correct.

Justice Potter Stewart: -- the Federal Employers' Liability Act.

Mr. Willis C. Darby: The second thing is the jurisdictional grant in the Federal Employer's Liability Act.

There, they used the term in granting jurisdiction to the state courts concurrent with those of the several states.

But now, many states including Alabama had constitutional provisions that did not allow the state to be made a defendant in any suit in law and in equity.

Now, this Court in Hans versus Louisiana, in commenting on the Eleventh Amendment which we later rely on, it specifically pointed out by using the term "concurrent with those of the several states."

Congress could not have intended in those cases to have granted to the District Courts or the Courts of the United States authority or jurisdiction over a suit by a citizen against his own state even though the cause of action always was one of those arising out of the Constitution in laws of the United States.

There again, Congress and in passing the Federal Employer's Liability Act used judicially determined language when it reached those words in granting jurisdiction to the Court.

Perhaps, in addition to that, they -- the appellant here relies on the fact that this Court has found in connection with the Railway Labor Act and also in connection with the Safety Appliance Act that the state subjected itself to those Acts by engaging in the business of a common carrier by rails, they, as a substantial fit -- of deference in the purpose of those Acts.

For instance in the Safety Appliance Act, the railroad were required to put into effect on their cause certain things that would join and meet with all other cause, of all other railroads throughout the United States.

Well, obviously if a state didn't comply with that Act, its cars could run on the other tracks.

So if they did run on the tracks, it would cause the most dangerous situation.

Alabama, of course, has complied with that.

Those cases did not reach the question of the jurisdictional power of Congress to impose upon a state the -- a -- a suit at the hands of one of his own citizens.

There are those Acts so enforced by the United States, it's brought in the name of the United States.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Willis C. Darby: Then this case wouldn't be here on the point that it's here now, because the sole point that the cases before the Court is whether or not any individual can bring the suit.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Willis C. Darby: We -- we wouldn't be here on that case.

We have been sued by the United States for violation of the Safety Appliance Act and we tried among the merits.

The -- the same thing is true of the Railway Labor Act.

There, you have national bargaining in the railroad industry or we follow what is done in the National Bargaining Act, a state statute and we didn't go to Court to get that state statute.

The legislature passed it on its own.

Say as we will follow what's done and that is substantially what we do.

There again, certain suits could be brought by the United States with --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Willis C. Darby: What we do, we have in the state a Workmen's Compensation Act where state employee is very similar to or at least in purpose to that that the United States has with respect to its own employees.

The -- the measure awarded as employees under the state statute and it applies to the terminal railway as to how -- as to whether as to all other state employees, is whatever is the same award that is made to people in private industry not engaged in interstate commerce but in the intrastate commerce and it is changed from time to time by the state legislature and increased.

In some cases of course, an employee who was injured only because of his own negligence working for the terminal railway would receive a recovery under the compensation statute where under the Federal Employers' Liability Act, assuming it was applicable, he might receive nothing.

Actually, it cuts both ways as insofar as the employee himself is concerned.

Our -- our main argument here and the main thing we think before the Court, is the question of the Eleventh Amendment.

Now, you can say what you will about the Commerce Clause and perhaps the Court said something about that back when it decided Chisholm versus Georgia.

With that case, it didn't meet with the acceptance of the public and the Eleventh Amendment was immediately adopted because they didn't feel that the Court had properly interpreted the Constitution.

And in the Eleventh Amendment, the -- the people had used pretty strong language to avoid the decision in Chisholm versus Georgia.

They say the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by a citizen of another state.

Of course this Court in Hans versus Louisiana found in substance that the saying was true insofar as a suit against the state by a citizen of his own -- of his state was concerned.

The language in Hans versus Louisiana is just about as strong as any language could possibly be.

It gives state what the state should do, it should exercise its moral obligation and provide some method where recovery can be had and of course Alabama has done that here in providing for a recovery through the state law of adjustment.

Now, the argument of the petition here assumes that Congress has the right to condition a states engaging in interstate commerce upon that state's relinquishment of its right or privilege, whatever you might want to call it.

I think the Court has referred to as a right.

That is the right not to be sued in a federal court without its consent.

We submit that Congress could not impose such a condition assuming that it had wanted to impose such a condition.

We have a long series of cases by this Court in connection with taxation, also with other matters where a state attempted to condition a foreign corporation doing business in that state, or on the foreign corporations giving away some right that it otherwise might have had, such as the right to remove the case from the federal state court or to take away a property right from the foreign corporations such as the right to be treated as a private carrier instead of a common carrier.

The Court has been consistently held insofar as state legislations are concerned, that you cannot condition or a corporations doing business in the state by the relinquishment on behalf of the corporation of a constitutional right or privilege.

Or we go so far by us to have a case where the State required the corporation to sign a contract that it wouldn't remove it.

And this Court struck down the contract because it was obtained under compulsion.

But we submit that even had Congress intended to do so, that Congress could not have condition the State of Alabama must be giving away its immunity from suit as a condition of the State engaging in commerce by rail.

And if Congress did intend to make such a condition, we submit that Congress would have done it in precise language as they have done in some of the Labor Act such as the Child Labor Provisions of the Fair Labor Standards Act such as certain provisions of the Securities and Exchange Act and certain provisions of Acts to regulate the transportation of various commodities of the mail.

Congress knew how when it passed the Federal Employee -- Employers' Compensation Act, it knew how to make that condition.

And we submit that had Congress wanted to make that condition at that time, the Congress would have done so at that time in clear and precise language.

And we submit the Congress did not make any such condition.

That leads to another point.

If Congress placed that condition in the law, when that in 1908, when Alabama determined to enter in into the interstate business by rail as a common carrier, it would have had an opportunity to discuss that in its legislature, its citizens could have discussed it before they would -- don't have a constitutional amendment of the state engaging generally in the works of internal improvement through the cooperation of a Court, it had no such right.

I don't believe that anyone at that time would have thought that this case would be before the Court today where it was alleged that the state by engaging in interstate transportation by rail had for some unknown reason, waived its immunity from suit.

This -- this Court followed what was said in Hans versus Louisiana even after Alabama determined to engage in interstate transportation by rail in Monaco versus Mississippi.

It cited it -- this controlling wherein the principality of Monaco filed the petition in this Court to bring original action against Mississippi because Mississippi had defaulted on some of its bonds.

Justice John M. Harlan: What is the effect of that provision that your opponent read that either from the contractor, I don't know what the document was.

Mr. Willis C. Darby: It -- it actually was not a contract.

It's in the rules of the Terminal Railway.

All the railroads put out a large volume of rules and this is a substantial volume.

I think I know how it got into the record -- got into the book.

I couldn't be sure and the record doesn't show but what the railroad did, it just picked up the elements of the GM&Os, a large railroad book of rules and they copied it and published it.

If you read the whole thing, you find it they've applied the railroad that operate over many, many miles and through many states, and the rules, nine tips ultimately, don't apply to such as the Terminal Railway of the Alabama State Docks' operations were confined to a very small area.

There's no question about it.

It is in the rule and I think that's when we found it, it was in the rule.

It was when it was pointed out in this case below.

But we don't think it had any particular significance here.

Moreover, under the Constitution of the State of Alabama which it has a constitutional prohibition of the state being made a party defendant, or the state of the -- Supreme Court of the State of Alabama has ruled that neither the legislature nor any official of the state can waive the state's immunity.

So if it -- would be considered it by placing that in the book, they intended to waive or thought they could be sued, it was someone where state down below that put it in the book.

So back to the point of waiver because we must have -- I think for the petitioner to prevail, the state must have waived in some manner or other its immunity from suit --

Justice Byron R. White: (Inaudible)

Mr. Willis C. Darby: Yes, Your Honor.

Justice Byron R. White: (Inaudible)

Mr. Willis C. Darby: That's correct.

The -- the level (Inaudible) --

Justice Byron R. White: (Inaudible)

Mr. Willis C. Darby: The Constitution -- there is no jurisdiction in the District Court.

Justice Byron R. White: (Inaudible) jurisdiction, they consented.

Mr. Willis C. Darby: That is something that's often puzzled me in considering this matter because I don't quite -- to see how you can create jurisdiction by consent the language of the cases of this Court and other courts rely on the fact that they say there is no jurisdiction but they all say that a sovereign can consent.

So I guess you say if it goes in a circle.

Perhaps there's no way to get out of the circle.

But the point --

Justice Byron R. White: Even in -- even in -- even the -- even in the Eleventh Amendment cases, they say that, don't they?

Mr. Willis C. Darby: That's correct.

Even in the Eleventh Amendment cases.

And the Eleventh Amendment says -- that it said.

Justice Byron R. White: Yes.

Mr. Willis C. Darby: But -- but the court though, has either not read in -- it's -- it's followed the result of the Eleventh Amendment but perhaps it's used the wrong words in reaching it.

But the -- and frankly I don't know how in the face of Eleventh Amendment that you can have a consent case where a state comes in and consents, because the Court of course should determine --

Justice Arthur J. Goldberg: (Voice Overlap) --

Mr. Willis C. Darby: -- its own jurisdiction.

Justice Arthur J. Goldberg: That isn't even in your argument, that a state does not (Inaudible) rule of no sovereign immunity.

Mr. Willis C. Darby: If -- if the state had a rule of no sovereign immunity, we of course would not be here, we would have been -- we still might be here for this reason.

We -- if we had a rule of no sovereign immunity, it might be that it will be confined to our own state courts and we would say still the courts of the United States would not have jurisdiction.

Justice Arthur J. Goldberg: But you don't have an Eleventh Amendment case, you have a case of the Hans versus Louisiana arising in the third article of the Constitution, the judicial power of the United States.

That's the basis of Hans versus Louisiana.

Mr. Willis C. Darby: That's correct.

It -- in Hans versus Louisiana in substances as the court below said, that there was no need for the Eleventh Amendment insofar as a suit by a citizen against his own state was concerned.

Justice Arthur J. Goldberg: That's right.

(Inaudible) on the basis that cases in law and equity at that time when cases in -- n the from of no sovereign immunity.

Mr. Willis C. Darby: What --

Justice Arthur J. Goldberg: That the case in fact is a case that is -- a long (Inaudible) where the state had waived it, would that be a case in which the judicial power could not take its stand (Inaudible)

Mr. Willis C. Darby: We -- we would submit that that would -- that would make a very unusual conclusion that a citizen, say of Mississippi, who worked on a railroad was injured and he could not sue under the Eleventh Amendment.

But --

Justice Arthur J. Goldberg: But that might arise from the fact (Inaudible) and it would arise from the language of the Eleventh Amendment.

Mr. Willis C. Darby: Well, this Court has always determined in substance that the Eleventh Amendment was either not needed or implied or applied in substance to a suit where you have the citizen suing his own state.

Justice Arthur J. Goldberg: Does the Eleventh Amendment say anything about the consent?

Mr. Willis C. Darby: There -- there -- there is not a word about consent even in the -- in the Constitution or the Eleventh Amendment.

Now, when we rely somewhat or some of the criminal cases and that if we are assumed to have waived the right that we have when we're speaking of the state, we must of course have known that we had that right.

And of course we thought we had the right not to be sued in the federal or any other court.

We knew that part of it.

But we had no idea that it would be contended at some later date that by engaging in interstate commerce by rail, by that fact, we would have waived the right that we otherwise have.

And of course in order to have an intelligent waiver, we must have known that the Act through with -- that through we will -- through which we were going to waive what right we had, would have in fact caused that waiver.

And -- and there again, I refer to the fact that you have Hans versus Louisiana which is fairly clear and you have Monaco versus Mississippi decided after the state commenced its operations of the railroad, which show that it was at that time at least or rather unheard of, that a state could be subject to suit by a citizen of the own -- of his state.

The -- the words of the Court there was, and it was a form of action or a construction never imagined or dreamed of, and we submit that's still applicable here insofar as what Congress passed in 1908 and also what still stands today insofar as anyone concerned of a waiver.

The majority held in substance that by in entering in or the three of the judges held that by entering into the interstate compact and accepted it, that the state had waived -- that the state with the compact, at least, it waived any immunity that it might have had from suit.

In connection with that, the Act specifically said that it was a body covered in substance and it has that power to sue and to be sued or -- we of course have nothing here of that nature.

Moreover, Congress in the Petty case put certain conditions of which there was a matter of -- they said of that would put certain condition on the state entering into the compact and the compact being approved and that also referred at least as the majority held to a question over power to sue and be sued in the federal court.

Three judges agreeing with the result would not -- with the -- not that origin with -- of the result, held in substance that they didn't reached the Eleventh Amendment or the constitutional issue at all, that they didn't find that it was applicable to a compact.

But then we get down to a more fundamental difference perhaps here.

In the Petty case, this Court was called upon to apply federal law.

What did the compact mean on the federal law, not on the state law?

And this Court found that on the federal law, that there had been, insofar as anything was concerned a waiver of the immunity of the state.

But that is not the case in the view when you look at a state action, whether to determine whether a state acting in its own right, not through a compact, acting in its own right, has waived anything.

You look then to state law.

Well, there can be no question that in the state law that the state has not waived its immunity.

In all cases that we have found, where the question of immunity of a state from suit has been raised in the federal courts involving a private citizen, either of that particular state or of a sister state, all of these cases arise under the constitution and laws of the United States.

It would actually be impossible to have the case -- it did not so arise where a citizen was involved due to the fact that there would be no diversity of citizenship between a state and any of the citizen as they state itself has been held by this Court not be a citizen.

Therefore, all cases which we have cited and all the cases decided by this Court are in point insofar as the question arises out of the constitution, the laws of the United States.

The -- we -- we do not think and we submit that there is nothing as well known in the law, in this country insofar as the proposition which we argued before the Court today and that is that a state can not be sued in a federal or any other court without it's consent.

Some examples of the cases of this Court that show the extent of that well bounded rule, we submit are some of these.

In Beers versus Arkansas, the state had enacted a law that allowed it to be sued in its own court.

A suit was filed in the court, thereafter -- and after the suit was filed, the state changed this law and the court -- a court there held, the state court held that the immunity was thereby -- well, the waived ones was taken back and this Court affirms saying that the court that rather that the state had a right to change it's own law with respect to immunity even after a suit was filed as they had an unconditional right to withhold the waiver of their immunity.

In the case of Ford Motor Company versus Department of Trade Real Estate of Illinois, the plea of immunity was raised for the first time in this Court that had not been raised below.

The Court found that by entering into the suit and trying it on its merits below, the state did not wave its immunity due to the fact that the Attorney General of the state did not have the power to waive the immunity of the State of Illinois.

In the case of Missouri versus Fitts which we submit is just as strong as the case here or at least for the appellant was a case where the state court supposedly was interfering with the jurisdiction of a federal court.

And the lower federal court issued an injunction against the state from proceeding in its own courts in connection within a state.

There again, this Court held that the judicial power of the United States did not extend to a suit by a citizen against the state and therefore it could not be used even to protect the judicial power of the United States.

We submit that the same is true insofar as Congress is concern here.Congress does not have the power we submit to enlarge the judicial power of the United States either directly or indirectly and thereby require a state to be sued or as a condition of doing anything in the state would otherwise have the right or privilege not to do.

And we submit that that is true even assuming that Congress could prohibit a state from engaging in interstate commerce by railroad.

We -- we particularly urged upon the court that this Court should not determine on the record here and on the act of Congress, that Congress intended in any matter whatsoever to condition states engaging in the operation of a common carrier by rail upon it's submission to sue.

That would open a door that would in fact destroy a state's immunity from suit because if Congress has a power to condition the states engaging in the operation of a common carrier by rail on the states subjecting itself to suit, certainly it would have the same power in connection with the -- with a highway.

It would have the same power with the connection of the state using an instrumentality of commerce.

Mr. Wills C. Darby: I do not think that Congress could constitutionally express such a condition insofar as a state is concern.

And the reason for that is that a state's immunity from suit is something founded in the constitution and whether it's considered a privilege or a right.

And this Court has described it as a right that Congress cannot take away a right as a condition of doing something if they -- a body would otherwise have the right to do.

That leaves us to the series of cases by this Court where a state though it has the power to exclude a foreign corporation entirely from doing business within the state, the state does not have the power to require the corporation to waive a constitutional right or privilege that it might otherwise have as a condition of doing that.

And this Court, in the Hanover case where it declared the first Employer's Liability Act unconstitutional based its decision in part specifically on that ground because the court found that at that time, the Act covered the employees while they were not engaged an interstate commerce.

And the court said that Congress did not have the constitutional power to extend under the Commerce Clause and take away or extend itself outside of the Commerce Clause and take something away that the parties otherwise had a right to do.

Here, we have a constitutional provision.

Or for at least, its so interpreted and the Eleventh Amendment that adds weight to it and shows that the -- the people as well as the courts and Congress have particular said that Congress has no such power under any circumstance and the words as used by this Court, they say the whole sum of the judicial power of the cost of the state for the Federal Government does not extent to a suit by a citizen against his owns state or by a sister state.

So Congress can't add to the constitution even if it desired to do so by way of --

Justice Byron R. White: But that's just a --

Mr. Wills C. Darby: -- petition or otherwise.

Justice Byron R. White: You have to do a little construing before you can make your statement so confidently.

You have to first exclude from the judicial power vested in the federal courts the kind of cases that you are talking about.

Mr. Wills C. Darby: Well we -- we have Congress or the court has conserved most every type of case we submit.

Hans versus Louisiana was a constitutional question, it was a question of the impairment of contract which goes right to the heart of the constitution.

You have Ex parte New York that was an admiralty case involving the admiralty and maritime jurisdiction of the federal courts.

And there again, the court held that even though at the admiralty and maritime jurisdiction, one specifically included in the constitution that it was not going to hold that the state could be sued under the admiralty and maritime jurisdiction of the federal courts.

And we submit that in substance, this Court has already held that it is all inclusive.

The court has not held on the question of a condition other than in the Hanover case and it was not classified as a condition there.

Justice Byron R. White: How about the suits for the United States?

Mr. Wills C. Darby: Well, we have no question about the suits about the United States.

Justice Byron R. White: And why -- and why -- why not?

Mr. Wills C. Darby: In United States versus Texas many, many years ago, this Court held that United States could bring a suit because the United States would not be covered in the Eleventh Amendment and it's --

Justice Byron R. White: Because of -- because they could condition -- because they could -- they could condition entry upon the -- this was consent by the states to -- when they entered the union?

Mr. Wills C. Darby: I don't think it was based on -- I'm sure that it was consent because everything in the constitution itself would be based on consent by the states or at the time that either entered or when the constitution was written.

Justice Byron R. White: But that assumes the constitution said something about this.

Mr. Wills C. Darby: That's true.

But what the -- but you have a direct prohibition in the constitution and the Eleventh Amendment and it's been interpreted although by this Court to include any other type of suit in suits brought by a citizen against his own state.

Because the court says that was unheard of in the law at the time the constitution was adopted and the court as late as 1934 in Monaco versus Mississippi.

Again reiterated that that was something it was unheard of in the common law and that he did -- and that the whole sum again of the judicial power of the United States just did not extend to such a suit.

Justice William J. Brennan: Congress authorized a suit in the name of the United States on behalf of the employees of your -- of your railroad under the FELA?

Mr. Wills C. Darby: I -- I perhaps Congress could.

We submit that Congress has nothing --

Justice Byron R. White: Well that's true in the Safety Appliance Act.

That's already been --

Mr. Wills C. Darby: In safe --

Justice Byron R. White: That's already been decided then.

Mr. Wills C. Darby: That -- there's no question about the Safety Appliance Act with the -- in the Safety Appliance Act it specifically provides that the suit maybe maintained by the United States --

Justice Byron R. White: Yes.

Mr. Wills C. Darby: -- for the forfeiture.

Justice Byron R. White: Yes.

Mr. Wills C. Darby: And we have no question about the right of the United States to sue a state.

No question about the fact that another state could sue a state.

And I think that is definitely in our constitutional system.

Otherwise, there would be no control over the states.

I presume that the United States didn't have the file would go in and sue them in the court and have a judgment then they will be required to follow.

But Congress here has not -- did not deem fit to bring that conclusion about.

And perhaps --

Justice Byron R. White: (Inaudible) in here technically speaking, and then you just have a defense.

Mr. Wills C. Darby: Frank -- frankly, I don't know whether this jurisdiction or not that says that the whole sum of this -- of the judicial power shall not be so construed.

Now what -- whether it is actually jurisdictional or whether it is a question of a plea coming in that's an absolutely plea when you bring it in.

I frankly cannot say but I realized that you cannot create jurisdiction by consent.

And if that stands on the basis on the bottom that you have to say that there would be jurisdiction.

We -- we would submit this before the court, it would determine that Congress here has held that the state has intended that a state could be sued under the Federal Employers' Liability Act.

And there are things that should be considered and we think Congress would've have considered them and get the issue ever been brought before Congress.

Insofar as the United States is concerned, you have the Federal Tort Claims Act there.

Of course you have a -- Congress has held that you do not have a jury.

Certainly, they would enter to the same consideration if a state was going to be subject to suit.

Justice Byron R. White: (Inaudible) ICC?

Mr. Wills C. Darby: Yes, it does.

Justice Byron R. White: Its certificate --

Mr. Wills C. Darby: It -- it holds a certificate, it keeps its accounting.

It files reports with the ICC --

Justice Byron R. White: You don't think the Interstate Commerce Commission have the condition to granting a certificate.

But insists that the railroad answer up to -- submit itself to the same regulatory -- the regulatory scheme of the United States.

Mr. Wills C. Darby: We submit that it could not if it -- if it attempted to do so, we would probably have another case in this Court if this Court would consent to hearing the case.

Justice Byron R. White: But it hasn't been done in this case.

Mr. Wills C. Darby: It has not been done in this case.

There has been no question about it.

We also pay taxes to the -- under the Carrier Act and we comply with all of the other federal regulations.

We do it voluntarily we submit rather than through force.

We have been called into Court for violation of the Safety Appliance Act and we defended those cases on merits.

Justice Byron R. White: You mean, you wouldn't have to get a certificate to the ICC (Inaudible)

Mr. Wills C. Darby: Oh, we submit -- I -- I think we would have to -- have to have a certificate from the ICC.

But if the ICC refused a certificate on the basis of -- of the state consenting to be sued, we would come into Court on the basis that that was beyond the powers of the ICC.

But that is another point in connection with that question we submit and that is it.

If -- if Alabama is to be subjected to sue in connection with the operation of the railroad, it should first have forewarning that that is going to be true because it might be very well that the state would decide that it didn't care to engage in the business of interstate commerce by rail if that would subject it to sue.

Now, that's one reason we say that there's been no waiver here.

We've got no opportunity not to engage in it knowing what might happen to us.

Justice Byron R. White: (Inaudible) of the grievance settled this by the Adjustment Board or not?

Mr. Wills C. Darby: We -- we bargained with our unions.

We have always settled our disputes with them without having a decision to run it by the Board.

I would -- that that's as far as we've had to go so far.

If the question came, I'm sure that we do go.

We have been to Chicago and had cases submitted to the Board.

Fortunately, the union decided after we arrived in Chicago that perhaps we were right and they withdrew the grievances.But we didn't put up any fight about going.

Nor did we allege that they did not have jurisdiction.

Justice Byron R. White: Who went -- who went to the Board (Inaudible) the states?

The union or you?

Mr. Wills C. Darby: The union went to the board in four more cases.

We have also been to the board insofar as they -- a reopen of the contract.

That would be the National Mediation Board as distinguished from the Railroad Adjustment Board.

But we've also invoked their services.

Justice William J. Brennan: Could you tell me just briefly something of the state remedy where these injured employees you mentioned yesterday, there is a state remedy, is there?

Mr. Wills C. Darby: That is correct.

Justice William J. Brennan: And what -- what makes it sure that liability without fault (Inaudible)

Mr. Wills C. Darby: It is a work that the -- Alabama Supreme Court has described it as a Workmen's Compensation Act for state employees and it is liability without fault.

It would -- it goes before what's known as the State Board of Adjustment.

And the State Board of Adjustment as a -- was a statutory rule largely that it awards to employees in substance would be in the same amount as would be awarded for the same type of injury if they were a private employee.

Justice William J. Brennan: You mean, employee has to prove only that he was injured in the course of the employment?

Mr. Wills C. Darby: That would be the only proof required there.

Justice William J. Brennan: And nothing in the way of negligence or fault or otherwise?

Mr. Wills C. Darby: Nothing -- no question of negligence or fault.

It is in substance the same thing that the United States has established for its own employees.

Justice William J. Brennan: But if I (Inaudible) -- except I gather from what you said that the schedule of award is the same schedule that would define private employment.

Mr. Wills C. Darby: That's correct.

The -- the Private Act and something is made of that in our opponent's brief, they say that the Private Act says that it does not apply to persons engaged in interstate commerce which is true.

But, it does not affect the remedy insofar as the state employee is concerned because there again, the Act does not apply to the -- to the state employee but the -- the remedy is set up through the Board of Adjustment and the amount is determined by those schedules.

And of course they change from time to time always up.

Justice Byron R. White: But this is an administrative remedy.

Mr. Wills C. Darby: It is an administrative remedy.

Justice Byron R. White: And is it subject to court review?

Mr. Wills C. Darby: It is not subject to court review.

Our cases have been brought --attempting court review but they have not had any success so -- so to speak.

Justice Byron R. White: This is different from Workmen's Compensation.

The amount of the award is the same as the Workmen's Compensation Act.

Its probably subject to about the same review as an employee of the Federal Government who is injured and seeks compensation under the Federal Employees' Compensation Act.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Wills C. Darby: That is the way we understand it and from the decision of this Court in the (Inaudible) case that it would not apply.

Now, actually whether the Federal Government runs any railroads or not, I don't know.

I know that they do have railroad engines and they run them on their arsenals and things of that type but whether or not they would be considered a common carrier that is taking good from other persons, we don't know.

Thank you.

Chief Justice Earl Warren: Mr. Rives.

Argument of Al G. Rives

Mr. Al G. Rives: Mr. Chief Justice, may it please the Court.

With reference to the matter that Mr. Justice White was discussing with Mr. Darby about this remedy under the State Board of Adjustment, that -- that Act says that the rules of Chapter 5 of Title 26 of the Court of Alabama as to liability are to be filed in claims for personal injury or death of the employees of the State of Alabama or of any of its agencies, commissions, boards, institutions or departments.

And then Section 26 says that -- shall not -- that's the Workmen's Compensation Act, shall not be construed or held to apply to any common carrier doing an interstate business while engaged in interstate commerce.

So they say that they are providing a remedy for the petitioners under the State Board of Adjustment Act which puts liability on the basis of liability under the Workmen's Compensation Act and the Workmen's Compensation Act specifically excludes coverage to employees of common carriers engaged in state commerce.

So we're at their mercy, we have no means of review in any court as he admits.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Al G. Rives: I -- I understand that they voluntarily will pay him according to the schedule under Workmen's Compensation Act.

And I think the maximum that can be recovered in any kind of a case under that Act is about $90, some odd $100.

But, we take this position that -- that these petitioners are under the Federal Employers' Liability Act.

And -- and this method of -- of compensating these employees is in violation of the Federal Employers' Liability Act.

Section 55 of FELA says, “Any contract, rule, regulation or device whatsoever the purpose of which would be to enable any common carrier to exempt itself from any liability pleaded by the chapter, shall to that extent be void."

So -- so this -- this scheme or method that they have devised is absolutely void according to the FELA.

Now --

Justice Hugo L. Black: (Inaudible) as though it said that a railroad operated by state when the railroad is up -- for coming here is operated by a state, an injured person shall be allowed to sue the state under this --

Mr. Al G. Rives: Yes sir.

Justice Hugo L. Black: -- law?

Mr. Al G. Rives: Yes sir.

That's our contention, Mr. Justice Black.

And referring to Article III of the Constitution --

Justice Hugo L. Black: Would you think that violated the Eleventh Amendment?

Mr. Al G. Rives: No, sir.

I'll go into that.

Referring to Article III of the constitution, the Eleventh Amendment in Hans versus Louisiana, your petitions raised jurisdiction of their case under FELA in the United States District Court on that portion of Article III of the Constitution that extends its judicial power to cases arising under the lowest of the United States.

Your petitioners did not base jurisdiction on that portion of Article III that extends judicial power to controversies between a state and citizens of another state.

Now, the Eleventh Amendment does not add to or take from the jurisdiction of Article III of the Constitution that extends the judicial power to cases arising under the laws of the United States.

It merely undertakes to grant immunity to a state in a case of a citizen of one state suing another state.

The Eleventh Amendment does not express it, gives such immunity to the state in a suit commenced by -- against the state by its own citizen.

But, the State of Alabama cites Hans versus Louisiana.

Well, Hans was a resident or citizen of state of Louisiana.

And he brought suit against his own state.

It was -- it was on some coupon bonds that -- that's been issued by the State of Louisiana.

He -- he sought jurisdiction of the United States Court on the basis that his case arose out of the law of the United States.

Because he was going to -- in -- in prosecuting his case, he was going to rely on that part of the constitution about the impairment of contracts to support his case.

Of course Hans, this case did not involve a -- a case arising out of the laws of the United States or the Constitution of the United States.

That provision in the constitution was never to be used by Hans in support of his cause of action.

And that's -- should've the State of Louisiana invoke its con -- its immunity and -- and Hans won.

There was no side question involved in Hans.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Al G. Rives: Well, I think our position would be much weaker.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Al G. Rives: Well, unless we go back to the matter of the State of Alabama when it accepted the Commerce Clause of the constitution completely surrendered its sovereign immunity insofar, that it related to the power of the Congress to regulate interstate commerce.

And as we say, that power not only gives the Congress the power to -- to create a legal right but also it gives to Congress the power to create a legal remedy.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Al G. Rives: I think that's a matter of -- of immunity rather than -- than jurisdiction or of power.

It seems to me like we -- we -- and -- I might say this Your Honor that -- that Hans versus Louisiana and none of the cases following Hans versus Louisiana, involved a case where the cause of action was created by the Congress under power that was delegated to the Congress by the states under the Commerce Clause.

And -- and we claim that that's the difference between Hans versus Louisiana and our case and that our -- and that -- and the judicial power to our case comes in the first part of Article III that gives judicial power to a -- a case arising under the law of the United States.

Justice William O. Douglas: (Inaudible)

Mr. Al G. Rives: Well, I think that -- that any rights that the State of Alabama would have under the Eleventh Amendment that you've mentioned, it -- it might be called constitutional immunity.

But if it is Constitutional Immunity, Mr. Justice Douglas, in Petty, he said this, that when -- when the Court in 1793 held that a state could be sued in the federal court by citizen of another state citing Chisholm versus Georgia.

The Eleventh Amendment was passed precluding it.

But, this is an immunity which a state may waive.

Now, we say this, that if -- if there is any immunity by virtue of the Eleventh Amendment, it could either be surrendered or waived.

It's not dealing with a matter of jurisdiction.

It's dealing with a manner of immunity.

Now, as I say, we -- we contend that the State of Alabama did voluntarily surrender that sovereign immunity that it had from suit in accepting the Commerce Clause.

But if it didn't surrender it at the time the State of Alabama accepted the Commerce Clause, then it surrendered it or it waived it later.

When a few years ago the State of Alabama adopted an amendment to its own Constitution which authorized the State of Alabama to engage in this type of business and under that Constitutional Amendment, it delegated to the legislature of the State of Alabama the power and the authority to enact appropriate laws for the state to engage in this business and this -- and -- and the people of Alabama by Constitutional Amendment authorized this business.

And then -- but they turned it over to the legislature by the amend -- on -- by the Constitutional Amendment.

They gave all these power to the legislature then the legislature proceeds to enact statutes that says that the state will operate these -- these facilities through a States Docks Department.

And if they do, it should be their duty to negotiate these working agreements on the Railway Labor Act, and that the legislative act says, "And operate this railroad as though it were an ordinary common carriage."

Now, we submit that that action of the people of the State of Alabama who delegated it by Constitutional Amendment to the legislature and constituted it either a surrender of sovereignty and supported this manner of -- of interstate commerce.

Or if they didn't surrender it, they certainly waived it and then we add on couple of the Constitutional Amendment and the Legislative enact the conduct of the State of Alabama under the Constitutional Amendment and the legislative enactment and what did they do?

They -- here are the things they did.

They operated the railroad as authorized as a common carriage in the interstate commerce.

They actually entered into agreements under the Railway Labor Acts.

They did all of these things that Mr. Darby as a representative of the State of Alabama admits even going to the National Railroad Adjustment Board with their grievances.

Complying with the regulations of the Interstate Commerce Commission imposed written working conditions in the form of -- of a writing relating to the -- the conditions under which the employees would divulge information relating to -- to cases under the Federal Employees Liability Act.

And suits -- all of these things may it please the Court we contend, constitute either a surrender of their sovereignty or their sovereign right of immunity as to --

Justice William J. Brennan: (Inaudible)

Mr. Al G. Rives: -- yes sir.

Justice William J. Brennan: (Inaudible) as I gather, there are other states that operate railroads, I know that California does.

Mr. Al G. Rives: Your Honor --

Justice William J. Brennan: What -- what have they done about it?

Mr. Al G. Rives: Here is what -- they -- the only thing that -- all I know is that -- that this Court and all the courts that had anything to do whether have held this state owned railroad in California under the Federal Safety Appliance Act, the Railway Labor Act and the Court of Appeals of California has held that railroad liable under the Federal Employer's Liability Act.

Now, that is the only case --

Justice William J. Brennan: That's a state court (Inaudible) --

Mr. Al G. Rives: That's -- that's a state appellate court.

Justice William J. Brennan: Yes.

Mr. Al G. Rives: Now then Louisiana has held that railroad terminal is operated by the City of New Orleans.

And the court of Louisiana has held that -- that there under the FELA and the one in Charleston, South --

Justice Hugo L. Black: On what theory (Inaudible)

Mr. Al G. Rives: I -- as I recall, on the basis that they engaged in a -- in a -- as a common carrier by railroad interstate commerce they therefore subjected themselves to the FELA.

I'm -- I'm not too sure about that but I -- I know that's true of the California case and I think it's true of Lou --

Justice William J. Brennan: (Inaudible) statutes, I mean statutory or constitutional provisions in those states which expressly consent the suit under the FELA?

Mr. Al G. Rives: Well, California pleaded -- pleaded that they had no right to -- they had not consented to be sued, or couldn't be sued.

They erased all of these things that the State of Alabama has raised it.

Justice Tom C. Clark: Did California court (Inaudible)

Mr. Al G. Rives: Yes, sir.

That was Maurice versus State.

Justice Byron R. White: What's that?

Is that citation in your brief?

Mr. Al G. Rives: Yes, sir, it's in our brief.

It --

Justice Hugo L. Black: Do you -- do you think if Congress had passed a law which forbids a state to run a common carrier in interstate commerce?

Mr. Al G. Rives: I can't answer that, Your Honor.

Justice Hugo L. Black: As I understand your argument, it boils down on the waiver, maybe I was wrong with that, that it's this.

Congress passed a law within his power saying if railroads engaged in interstate commerce be operated in certain way and subject to certain suits in courts and that thereafter, the State of Alabama knowing of this law which was the supreme law of the land and suppose it could be, even now, it may not be a good argument.

But knowing of this law, it bought a railroad, took a railroad over and decided to run it, the state.

And you're saying by that action, it -- which in whole that it waived this right, sovereign immunity or to be sued in the courts because it went into that business knowing and under the supreme law of the United States, it did said that there must be liability.

Mr. Al G. Rives: Yes sir.

Justice Hugo L. Black: And that the argument -- and that here if there is not liability on waiver, the Act cannot be carried out at all.

Mr. Al G. Rives: That's right.

Justice Hugo L. Black: That's -- (Voice Overlap) --

Mr. Al G. Rives: Except that -- unless they surrendered it when they accepted the Commerce Clause.

Justice Hugo L. Black: I believe Judge Brown said that they admit it.

What you have here was a case of liability without a remedy.

Mr. Al G. Rives: He said what -- what this case presents is a situation (Inaudible) would have a strange annulment -- anomaly of -- of clear legal right with any -- not any effectual means of enforcement.

Justice Hugo L. Black: And what we have is a situation where Congress passed the law, attempted to fix liability on all common carriers without stating whether the state cannot.

A state goes into that business.

Mr. Al G. Rives: That's right.

Justice Hugo L. Black: Our question is whether by that we can say that it waived its right not to be sued under the Eleventh Amendment.

Mr. Al G. Rives: Well, we think they surrendered their sovereign right of immunity and they also waived it under the facts and authorities that we cited in our brief Mr. Justice Black.